TaxTMI 
TaxTMI 
2020 (2) TMI 1726
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....avit-in-evidence, which, according to him, go beyond the plaint, submits that some of the facts sought to be introduced in the affidavit have no basis in the pleadings. Hence, he submits that the Trial Court's order deserves to be affirmed. 4. This Court has perused the impugned order and heard the submissions of the parties. The trial court record was also summoned by this Court. The suit is one for recovery of possession, mesne profits and occupation charges, filed by the Plaintiff i.e., Mr. Brij Prakash Gupta against the Defendant i.e., Mr. Ashwini Kumar. The case of the Plaintiff in the plaint is that the Defendant's father-Mr. J.C. Bahree was a tenant in the suit property bearing No. 812, Joshi Road, Karol Bagh, New Delhi (hereinafter, "suit property"). Details of the relationship of landlord and tenant have been stated in paragraph 3. The manner in which the notice of termination of tenancy was issued and the factum of the termination of the said notice having not been withdrawn is contained in paragraphs 3 to 5. Thereafter, details have been given of how Ms. Satya Wati Bahree, i.e., the Defendant's mother, had a limited inheritance in the suit property. Further,....
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....s., AIR 2003 Bom 371. The Bombay High Court, in F.D.C. Ltd. (supra), held that in the case of appealable orders the examination-in-chief may be filed by way of an affidavit, however, the same would not form part of the evidence until and unless the deponent appears before the Court and confirms the contents of the affidavit. The Supreme Court, however, further observed as under: "33. The matter may be considered from another angle. Presence of a party during examination-in-chief is not imperative. If any objection is taken to any statement made in the affidavit, as for example, that a statement has been made beyond the pleadings, such an objection can always be taken before the court in writing and in any event, the attention of the witness can always be drawn while cross-examining him. The defendant would not be prejudiced in any manner whatsoever if the examination-in-chief is taken on an affidavit and in the event he desires to cross-examine the said witness he would be permitted to do so in the open court. There may be cases where a party may not feel the necessity of cross-examining a witness, examined on behalf of the other side. The time of the court would not be wasted in....
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.... of the Court would not be wasted in examining such witness in open Court." (Emphasis added) Once the affidavit in lieu of examination-in-chief is filed it partakes the character of the examination-in-chief of the concerned witness. There is no provision under the said Code under which the Court can direct deletion of any portion of an examination-in-chief. Nevertheless, an objection can always be taken by the rival party in writing to any objectionable portion of the affidavit. Moreover, the attention of the witness can be always invited to said portion while cross examining him. If there are irrelevant statements in the affidavit in lieu of examination-in-chief and if there are statements which are beyond the scope of the pleadings, the rival party can always record his objection in writing to the objectionable portion of the affidavit. The law is well settled. A party to the suit cannot be permitted to travel beyond his pleadings. If any evidence is tried to be adduced which has no foundation in the pleadings, the Court always has a power to discard such evidence while finally deciding the suit or proceeding. 6 The submission of the learned counsel for the petitioner was t....
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....n writing. It is always the duty of the Court to decide as to how much evidentiary value should be given to a particular piece of evidence. If a portion of the affidavit is found to be not relevant or if it is found that the portion has no foundation in the pleadings, the Court can always discard it while deciding the suit." 10. This finding is reiterated in Harish Loyalka (supra) as under: "13. Generally speaking, matters of relevancy can be deferred to the stage of arguments; indeed, they must be. It is not always possible to say at the stage of examination-in-chief whether a given statement is or is not relevant. Some statements may be ex-facie entirely irrelevant; these might stand on a different footing, as the Rajendra Singh Court said. Therefore, unless the material is ex-facie entirely and demonstrably irrelevant, the affidavit evidence must retain the material provided it is a deposition of some fact that is to the deponent's knowledge. Matters of surmise, conjecture, arguments and in the nature of legal submission or in the nature of pleadings attempting to controvert what is stated in the plaint or the written statement are not evidence. They are, therefore, not e....
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....applicants had any objection, the same could be taken by him before the learned Local Commissioner and got recorded rather than filing the present application. 21. I fully agree with the contention of the learned senior counsel for the defendants that as a matter of law, a fact which is not pleaded cannot be proved and therefore, evidence has to be confined only with regard to the facts which are pleaded but at the same time, it is not necessary that in the plaint while pleading the facts, the evidence with regard to the same be also averred. It is also correct that under the Evidence Act, 1872 a party who is to adduce evidence is given liberty not only to produce evidence with regard to the 'fact in issue' which is involved in the case but it is also permitted to adduce evidence with regard to the relevant facts provided, they are admissible under Section 5 to 55 of the Evidence Act which clearly lays down the parameters within which a fact must fall and only then it can said to be a relevant fact. 22. It may be pertinent here to mention that a fact may be relevant but still it may not be admissible. " 13. A conjoint reading of the above decisions shows that the legal....
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..... Viewed in the backdrop of the above legal position, a perusal of the impugned order dated 23rd February, 2019 shows that the Trial Court has done a minute examination of the affidavit-in-evidence to expunge certain portions of the affidavit. This Court has perused the objectionable portions pointed out by the Defendant. Most of the objectionable portions, including paragraphs 2 and 3 are primarily expanding on or giving further factual basis for what has already been pleaded in the plaint. 16. In paragraph No. 2, the deponent has stated that he was one of the sons of the Plaintiff and that he has been handling the day to day affairs of the suit property and also dealing with the tenants. This fact is needed for the affidavit-in-evidence in order to give a factual basis as to why one of the sons of the Plaintiff is deposing before the Court. This cannot be said to be alien to the plaint. 17. In paragraph 3, details of the site plan and how the same was signed by the Defendant, as also by Mr. J.C. Bahree, which is a fact which is in the personal knowledge of the deponent cannot be said to be contrary/alien to the plaint. 18. In paragraph 4, details as to why the office copy of t....